SOME 


OBSERVATIONS 

ON THE 

PROPOSITION TO ELECT 
UNITED STATES SENATORS 
BY THE PEOPLE 



BY 

JOHN R. DOS PASSOS 

OF THE 

NEW YORK BAR 





SOME 


OBSERVATIONS 


ON THE 

PROPOSITION TO ELECT 
UNITED STATES SENATORS 
BY THE PEOPLE 


BY 

JOHN R. DOS PASSOS 


OF THE 

NEW YORK BAR 



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PXU$ OF w F R0B8RT9 CO, 

WASHINGTON. O C. 



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The Constitution of the United States provides: 

“The Senate of the United States shall be composed 
of two Senators from each State chosen by the legis¬ 
lature thereof for six years and each Senator shall have 
one vote.” 

The debate in the Constitutional Convention upon this 
clause was thorough. It was necessarily entwined with the 
debate upon the method of electing the members of the 
House of Representatives. From the report that exists, it 
is significant that the proposition to elect the Senators by 
the people was distinctly presented, fully considered and 
overwhelmingly negatived. One must judge of the pains¬ 
taking care given to this question not so much from the 
debate upon it, as by the character of the men who composed 
the Convention, and who brought to the work as the result 
of years of study the most varied and profound knowledge 
of the origin and purposes of government. Any suggestion 
that this clause of the Constitution did not receive full 

3 


?y transfer 
White House 
fci r eh 3rd, 1913 


thought is therefore foundless. And Hamilton in his many 
explanatory and defensive essays of the Constitution did 
not feel it necessary to say more upon the method of elect¬ 
ing Senators than the following (p. 385, Federalist) : 

“It is equally unnecessary to dilate on the appoint¬ 
ment of Senators by the State legislatures. Among 
the various modes which might have been devised for 
constituting this branch of the government, that which 
has been proposed by the convention is probably the 
most congenial with public opinion. It is recom¬ 
mended by the double advantage of favoring a select 
appointment, and of giving to the State governments 
such an agency in the formation on the federal govern¬ 
ment as must secure the authority of the former and 
may form a convenient link between the two systems.” 

After an existence of nearly a century and a quarter as 
part of the organic law, we are confronted with the most 
serious attempt ever made to change this clause, and place 
in the hands of the people, instead of the legislature, the 
power of electing Senators. A majority of the Judiciary 
Committee of the United States Senate through its distin¬ 
guished and brilliant sub-Chairman, has submitted a report 
advocating this Amendment to the Constitution. The time 
has arrived when the question should be taken to heart and 
studied and disposed of with intelligence and patriotism. 
In my humble opinion unanswerable arguments have been 
made against changing the method of electing Senators by 
many members of that body, notably by Senator Hoar, since 
deceased, and ex-Senator Edmunds. But they have been 
forgotten and long since interred in that vast mausoleum 


4 


of parliamentary literature into whose deep and musty 
caverns none ever penetrate except the student who seeks 
to enforce his statements and principles by the authority of 
great names. Unfortunately , many prominent men on both 
sides of politics have thoughtlessly or hastily given their 
assent to the proposition to change the Constitution, and 
unless it be demonstrated that the substitution of 
the people for the legislature is fraught with 
actual danger to our institutions; that it in¬ 
volves an alteration of the whole machinery of the Constitu¬ 
tion by removing the checks and balances therein so exquisi¬ 
tely adjusted, a step may be taken without the people realiz¬ 
ing the grave consequences it involves. I respectfully dissent 
from the view that this move to change the manner of 
electing Senators is a popular one, or that there is any 
clamor of public opinion demanding it. On the contrary, 
notwithstanding many States have pronounced in favor of 
it, I believe that the people at large have taken very little 
interest in the question. Certainly as a separate national 
issue it has never been seriously discussed. In the last 
Presidential campaign Mr. Bryan distinctly tendered it and 
the people distinctly voted against it. It has been largely 
engineered by a class of reformers which overlooking the 
lurking dangers involved in the change, has blown the in¬ 
fectious doctrine throughout the land upon the wings of a 
false vox populi. 

After examining with more than superficial attention the 
small library of official and academic literature accumulated 
upon the subject, I have not seen a solitary ground based 
upon principle, reason or fact to sustain this proposition. 


5 


On the contrary in my humble judgment history, reason and 
principle unite in an emphatic and deep protest against it. 
In unfolding my views I shall in the proper places endeavor 
to fully answer the several grounds urged by the advocates 
of the amendment. 

Any change of any kind in the organic law is a serious 
event and unless there be plain and very substantial reasons 
demanding an amendment it should not be encouraged. 
Constitutions are not like laws, which closely follow the 
temper, customs and present tendencies of the people. These 
can always be changed by legislation to suit existing condi¬ 
tions. They are not unlike fashions of dress which are 
often altered to meet the whims and caprices of the people, 
and if they do not suit they can promptly be modified or 
abandoned. Constitutions are bodies of permanent rules, 
general and wide in their language and application, and in¬ 
tended to meet every condition and phase of national life. 
These monuments of wisdom comprehending in their text 
and spirit, the humanity, justice and freedom of a people, 
are made to endure, and like the magnificent architectural 
structures of the world, have been erected to withstand the 
storms, changes and ravages of centuries. Unhappily this 
important distinction has been frequently overlooked, and 
many State Constitutions are unnecessarily loaded with pro¬ 
visions whose subjects should be dealt with by the legis¬ 
latures. This has encouraged a looseness of thought among 
many of our public men and propositions to change the 
organic law are often treated as if only ordinary legislation 
were involved. 


6 


A change in the method of election of United States 
Senators will eventually result in the absorption of the two 
houses of legislation as now constituted by one large popular 
Assembly. For, it may be asked, of what efficacy are two 
houses of legislation chosen in the same manner? Two 
legislative bodies popularly elected? And a resolution has 
already been introduced in the Michigan Legislature asking 
for the abolition of the Senate. The Thane of Cawdor had 
but one bloody step to take and he would be King. This 
legislator of Michigan, gifted with the prophetic vision of 
the witches, would hasten the course of evolution and pre¬ 
cipitate a result which must inevitably follow a change in 
the method of electing Senators—the abolition of the Senate. 
The Articles of Confederation provided simply for a House 
of Delegates sent by the respective States to represent them 
—one legislative body—but the nature of our present Con¬ 
stitution, recognizing the necessity of proper checks and 
balances, created two—to act as one when wisdom prevailed, 
but to operate separately when the folly or passion of the 
lower house would result in injury to the people. 

The proposition now is practically to make the two one; 
one body listening to, and inspired solely by the voice of the 
people. The question preliminarily arises why such a radi¬ 
cal change in our government is required? What are the 
defects of the present system? What are the mischiefs 
which arise from the Senate as now constituted? Has the 
United States Senate made such an unenviable record that 
we must resort to the serious step of amending the Consti¬ 
tution ? 


7 


There are two propositions which must be demonstrated 
before such a change can fairly be demanded; first, that the 
method of selecting Senators by the legislatures has proven 
a failure; second, that the remedy proposed will give the 
people a better class of Senators than we now have by legis¬ 
lative selection. The former is incapable of being affirm¬ 
atively answered by facts; and the latter is a pure dream 
or speculation utterly insufficient to justify a change in the 
organic law. 

Naturally these questions must be squarely answered be¬ 
fore the people of this country should move; naturally there 
must be some demonstration of existing evils before we 
apply a knife to the Constitution which will cut away root 
and branch a function so important as the Senate. 

It affords me infinite satisfaction and pride as a citizen 
of this Republic to make this statement: That since its 
creation , looking at it as a whole , the Senate of the United 
States compares very favorably with any legislative body of 
ancient or modern times. It has fairly fulfilled all of the 
predictions of its authors and friends. Its usefulness as a 
check has been illustrated on many occasions, memorably 
when a few Republican Senators rising high above party and 
partisan political motives repulsed the scandalous attempt 
to remove Andrew Johnson from the Presidency by im¬ 
peachment. In point of intelligence, patriotism, wisdom, 
and of the political and moral honesty of its members it is 
a legislative body which the people should be proud to sus¬ 
tain in its entirety. Surely it has at times been the sub- 


8 


ject of just criticism; I grant that at times some of its 
members have been partial, ignorant and even corrupt, but 
it is as near an approach to political fitness as any other 
branch of the government. Hold it up to the mirror of 
comparison with the Executive, the Judicial—or the popular 
body—the House of Representatives—go back through all 
the mutations of party and political strife—and it does not 
suffer by the view. 

It may be true that a few men have obtained seats in that 
body by the use of money; it may also be true that some have 
been returned through the worse influence of partisan poli¬ 
tics; and it is true that some of its members have been 
ignoramuses, demagogues, and blatherskites, but neither of 
these classes has had any appreciable influence upon legis¬ 
lation. One thing is sure that in no legislative body do 
men find their true level so quickly as in the upper House 
of Congress. He who has been returned by corruption; he 
who, being a pure demagogue, has obtained the Senatorial 
toga; he who has mere tongue and no brains; the first, the 
second and third, the men of these classes may cut sensa¬ 
tional and dramatic fantastics in that body, but they will 
soon sink into oblivion and contempt—derided and despised 
by their associates and finally condemned by their constitu¬ 
ents and countrymen. The American people are not slow 
to mark their public men and where political crimes or 
personal defects are discovered the finger of scorn is soon 
raised to point them out as unworthy public servants. That 
a few demagogues; that some bad and ignorant men have 
made their way to the Senate; or that even the Senate as 


9 


a body has on occasions been derelict in its duty to the peo¬ 
ple, is no reason whatever for a change in the method of 
electing its members. Compare its members and the history 
of the Senate with the members and acts of the House of 
Representatives, and then let anyone conscientiously, if he 
can, say that the method of direct election by the people 
would be better for the interests of tlie country, or would 
produce a higher class of representatives than those elected 
by the legislatures of the different States. It will be a sad 
sight to this country when the Senators of the United States 
shall as a body make a confession to the American people 
that they are unworthly of the trust committed to them and 
no longer fit to represent the sacred interests which the 
States have confided to their hands. 

The nature of our two Houses of Congress renders it 
most dangerous to the true interests of the people to alter 
the method of election of Senators. In every free govern¬ 
ment there must be two houses of legislation chosen by 
different methods, and distinctly examining proposed legis¬ 
lation from different standpoints. The popular house has 
its hands constantly on the pulse of the people and knows its 
immediate desires and wants; the upper house determines 
how far these desires and wants are consistent with the 
settled and fixed happiness and prosperity of the people. 
As Plato substantially puts it: forecast should direct improv¬ 
idence; reason control passion and wisdom command folly. 
Our political system is based upon checks and balances, each 
function or branch as delicately arranged, as nicely adjusted, 
as the works of a watch. Any change like the one con- 


10 


templated will throw out of gear the whole machinery of the 
Constitution. The three departments of our government 
are separate from each other but they are all contiguously 
connected. We enter from one branch into another as one 
walks from one room to another in a symmetrically ar¬ 
ranged house; yet each branch is an entirety and independent 
of the other. The Senate is a check upon the House, and 
the Executive a check upon both, and each of the houses 
severally a check upon the Executive and upon each other. 

John Adams, in a letter to John Taylor, gives the follow¬ 
ing description of the United States Government: 

“First, the States are balanced against the general 
government. Second, the House of Representatives is 
balanced against the Senate, and the Senate against the 
House. Third, the executive authority is in some de¬ 
gree balanced against the legislature. Fourth, the 
judiciary is balanced against the legislature, the execu¬ 
tive and the State governments. Fifth, the Senate is 
balanced against the President in all appointments to 
office, and in all treaties. Sixth, the people hold in 
their hands the balance against their own representa¬ 
tives by periodical elections. Seventh, the legislatures 
of the several States are balanced against the Senate by 
sextennial elections. Eighth, the electors are balanced 
against the people in choice of President and Vice- 
President.” 

In fact we have more checks upon each department than 
in any government ever instituted. To wantonly remove 
one or more of these when there is no semblance of weak- 


11 


ness or sign of decay, with great respect to its advocates, 
would be an act of sumblime folly. 

The Senate is peculiarly a representative of the 
States; the House photographs the present feelings of the 
people. The House ebbs and flows according to the cap¬ 
rices of popular vote, the Senate is the permanent agent of 
the States—it is unchangeable without the consent of all of 
the States as such. No popular current, no matter how 
strong, can sweep a State out of the Senate without its own 
consent. 

So if we look beyond the surface of things into the causes 
for the creation of the Senate, we can hardly fail to be 
convinced that the different method of choosing the mem¬ 
bers of each house of Congress is based upon the pro- 
foundest study of the workings of governments. To main¬ 
tain the checks and balances each must be fed from a dif¬ 
ferent political breast. If not , their inspirations of duty and 
the result of their labors would always be the same. It is 
impossible to get a full conception of the theory and spirit 
of our Confederation by reading the sometimes jejune re¬ 
ports of the debates and proceedings of the Constitutional 
Convention of 1787 or of the State Conventions which rati¬ 
fied the Constitution. These must be supplemented by 
historical and political research, which light up the meaning 
of the remarks of the distinguished statesmen who created 
it, and which show why, and of what material, the different 
branches of the government were created. 

The members of the Convention had both ancient and 


12 


contemporaneous precedents for electing the Senate and 
House of Representatives by different methods. The State 
of New York, for example, had adopted a Constitution at 
Kingston on April 20, 1877, ten years before the Constitu¬ 
tional Convention assembled, in which it was provided that 
the electors of the Assembly should possess a freehold of 
the value of twenty pounds but that the Senators should be 
chosen by the freeholders possessing freeholds of the value 
of one hundred pounds over and above all debts charged 
thereon. This discrimination between those voting for 
members of the Assembly and for the Senate was not a 
capricious one but based upon sound and substantial grounds 
to which I shall hereafter refer. 

I could quote very extensively from the greatest constitu¬ 
tional, philosophical and historical, writers to show that the 
distinction is fundamental, but I do not deem it essential. 
Perhaps at some stage of the discussion it would be interest¬ 
ing to do so. But at present when the advocates for change 
show no defects in the existing system, and in fact make no 
criticism of its work, and where their whole argument for a 
change rests upon speculation and guess, a recourse to gen¬ 
eral principles is sufficient. 

The Senate has as its prototype the English House of 
Lords, but, with three profound differences: First, the 
members of the one are in substance hereditary peers, the 
members of the other are selected by the legislatures of the 
different States. The former has its origin in birth or 
appointment by the King—the latter owes its selection to 
the people through their legislative bodies. As the people 


13 


choose the members of these legislatures with special ref¬ 
erence to electing United States Senators, it is after all the 
people themselves, considered this time as citizens of the 
State, who choose their Senators. But as to one main pur¬ 
pose, the House of Lords and the Senate of the United 
States are substantially identical. They both represent the 
maturity, the wisdom, and as has been well said, the second 
thought of the nation. They protect the wealth, the prop¬ 
erty and substantial rights and interests of the people; they 
are a breakwater against the seas of passion and 
prejudice of the excited masses which sometimes roll in 
against the vested interests and rights of the people. At 
times the people must be protected against themselves. 
Willoughby (The Nature of the State) well expresses the 
thought: 

“The people even when acting in their most direct 
manner cannot always be trusted to act wisely and 
according to their own best interests; that passion and 
prejudices of the moment will urge an electorate or as¬ 
sembly to measures destructive as well to the welfare 
of the State as to its stability, and that at times the 
despotism of the multitude can far exceed in severity 
that possible of exercise by the most autocratic of mon- 
archs.” (P. 399.) 

On such occasions, happily rare in our history, the Senate 
checks attempted encroachments upon the rights of persons 
or things urged by the other house, it balances the scales— 
and maintains the equilibrium of the Constitution. A select 
council or an upper House of Legislation exists for the two¬ 
fold protection of minority interests and of property. A 

% 


14 


nation with one house chosen by popular vote cannot live 
long, and it would not alter the result that there were two 
parliamentary bodies chosen by popular vote instead of one; 
or that the term of one was two and the other six years. 
The same breath would blow them into a two-fold rage— 
and the eventual consequences would be the destruction of 
the form of government. Some public men seem to think 
that in discussing political questions property and the mi¬ 
nority interests must be considered secondarily. Indeed they 
are often not referred to at all. The class of which I speak 
regard it as a quick road to public favor to frame an issue 
of the people against wealth. But personal rights and 
private property are so entzmned that in fundamental legis¬ 
lation it is impossible to separate them. Indeed, nothing is 
more superficial and evanescent than to ignore these inter¬ 
ests, in any class of legislation, for, when such political 
issues reach the final stage of adjustment—when the chaff 
is separated from the wheat, when a true analysis is made, 
it is found, especially in this country, that all classes of the 
people are property owners—they have their farms; their 
small houses in the city; their deposits in the savings banks; 
their various businesses, and interests in industries; and in 
many different ways the working classes (in which I in¬ 
clude all men who employ or are employed) the merchant, 
farmers, professional men, clerks and laborers, are the sub¬ 
stantial owners of the property of the country. These in¬ 
terests—of incalculable value—the result of years of toil 
and suffering, are entitled to the same protection as the 
purely personal rights of the proletariat —a word again com¬ 
ing into use but which in this country is yet happily limited 


15 


to the individual who can pack his belongings in a satchel 
and segregate himself from society. Let us not be chary 
or timid in asserting and upholding the rights of property, 
not only to a full protection of the law, but to a distinctive 
participation in legislation. The true and ultimate interests 
of all of the people require it. This phrase “the people” is 
a very popular one—but it is frequently misunderstood or 
misapplied. In all discussion respecting the organization of 
governments what is meant is the people massed and acting 
as a body. Such a body becomes a distinct department, call 
it what you please—an assembly, a legislature, a wittena 
gemote, a council of wise men, House of Commons, or 
what not. As a department of government it must be sub¬ 
ject to the same checks as the Executive. The tyranny of 
“the people” thus concentrated is as far reaching as that of 
a monarch or despot. The general people recognize this 
fact for in making constitutions they expressly create check 
reins against their own impulses. No government could 
be operated unless the people subjected themselves to checks. 

There are three elements in every organized government; 
first, the State; second, the magistrates (which includes 
legislative and judicial officers); and third, the people. All 
internal disturbances come from a lack of adjustment be¬ 
tween these three. It is conceded the State must have 
absolute power within the sphere of her operation, hence 
the real difficulties lie in a proper division of power—too 
much to the executive or magistrates or too much to the 
people, or too little to one or the other produce discord. 
The success of a government reaches its climax when by 
an adjustment of the different parts all work harmoniously. 


16 


I confess I am amazed at the argument used by the ad¬ 
vocates for this amendment: that a changed condition of the 
country from that which existed when provision was made 
for electing the Senate by the legislature, demands that the 
people be now substituted in place of the latter. On 
the contrary it is the strongest reason in favor of re¬ 
taining our present system. A republic with thirteen 
million of inhabitants presents an entirely different ques¬ 
tion from one with one hundred million of individuals. I 
respectfully maintain that contemporaneous history shows 
that the natural political trend of our country as our popula¬ 
tion increases is towards a representative government; that 
each day we drift farther away from a pure democracy; 
and that the necessity of the people in all of the affairs of 
the government to be represented by political agents has 
increased almost ten fold since its formation. He who ad¬ 
vocates the application of pure democratic principles to 
existing conditions it seems to me but poorly comprehends 
our real political, commercial and social status. 

Convinced of the absolute impracticability of governing 
directly, the voters have committed their interests to repre¬ 
sentatives, whom they choose at stated intervals, either vot¬ 
ing directly for the nominees of party conventions, or, in the 
case of Senators, through legislators, duly chosen by them. 

It is a physical and political impossibility that any but a 
representative government can exist here, unless forsooth 
we agree to a despotism, or divide the country into hundreds 
of States, each so small in the number of its inhabitants that 
every member thereof could directly exercise a voice in it— 


17 


another remote possibility—and one reaching into the con¬ 
fines of a political millenium. At the bottom, however, of 
this representative government, we find the people. They 
are its movers and its inspiration. They choose freely their 
representatives to political conventions, and govern by ex¬ 
ercising a perpetual control over their political agents, having 
always in their hands the power to correct the evils, mistakes 
or shortcomings of the former. The spirit of democracy 
breathes through and vitalizes all our political forms. Now 
many of the potential reasons which prevent the establish¬ 
ment of a pure democracy in this country, operate to render 
impracticable the proposed movement to vest in the people 
the power to nominate directly their officers. The people 
in such instances cannot act spontaneously or work harmoni¬ 
ously together. If it be a question of national charity or 
national insult all hearts beat as one—all eyes are turned in 
one direction, and all hands work together; but in the mul¬ 
tiplicity of ordinary national concerns the people must dele¬ 
gate their power. Our population has become so dense and 
numerous that it is utterly impossible for the masses to 
nominate competent candidates; they cannot know whom to 
choose; they cannot put their finger upon the proper men. 
An excessive number of voters was the primary motive for 
the original creation of a representative government. It 
now has an additional cause growing out of the complica¬ 
tions of modern commercial, economic, and political ques¬ 
tions. The selection of candidates is a particular business, 
requiring special knowledge. The people must, therefore, 
from the necessity of things, act second-hand, through politi¬ 
cal agents and conventions. The members of the legislature 


18 


are known to the voters—a direct responsibility can be 
fixed upon them. It is true that in many instances the occu¬ 
pation of a political agent is sordid rather than patriotic. 
We must, however, recognize that professional politicians 
are a necessity, and the more respectable we make the occu¬ 
pation, the better government we will have. I believe that 
wholesale and undiscriminating criticism of this class is un¬ 
justified. Here is a movement which involves a bitter criti¬ 
cism of forty-eight legislative bodies. All of the sessions of 
the legislature and of political conventions are held in the 
broad light of public opinion—all of its acts are reflected 
in a press, most powerful in number, most vigilant in scan¬ 
ning every movement, and spurred on by conflicting views 
and by competitive business interests. An existing investi¬ 
gation into an election for a Senator shows the utter hope¬ 
lessness of legislative bribery. On the other hand, 
out of a system of direct voting there must inevitably arise 
irresponsibility. No one can trace the movements of an un¬ 
organized body, each one insisting upon his own candidate 
or choice. For each office, instead of two or three candi¬ 
dates, we should have many. Political modesty, a quality 
already sufficiently rare, would soon disappear, and each citi¬ 
zen would feel that he was as good as another for a given 
office. The demagogue would come to the surface—not 
disguised as a patriot, but in his real costume, and then the 
people would hear of nothing but political candidates who 
would swarm upon the rostrums to the detriment of all our 
business interests and the real good of the people. Is the 
nation not already sick of the spectacle of self-nominated 


19 


candidates who patrol the different States declaring their 
own political greatness and personal virtues ? 

Mr. Hallam says, in the XVI Chapter of his Constitu¬ 
tional History of England, that “Numerous bodies are 
prone to excess both from the reciprocal influences of their 
passion and the consciousness of irresponsibility for which 
reasons a democracy; that is, the absolute government of the 
majority, is the most tyrannical of any.” 

Property, small or great, of one hundred dollars, or one 
hundred million dollars, is entitled upon all political and 
social principles to distinct representation; for the establish¬ 
ment of liberty, the encouragement of industry, and the pro¬ 
tection of property are the underlying motives of all social 
organization. The guaranty of such protection is found in 
an upper, the creation and development of personal rights 
and property in a lower, House. 

No matter how a select council is created, whether by ap¬ 
pointment of the State executive, or selection by the State 
legislative authority, it must when necessary act as a check 
to popular encroachment upon fundamental or constitutional 
rights. Caesar, after he became dictator, exercised the partic¬ 
ularly important right of nominating Senators, but, having 
the power of nomination the office of Senator became dead as 
to him, for it was conceded that its work did not apply to the 
Imperator—which meant the concentration and perpetuation 
of official power in his hands. I by no means assert that 
when Caesar absorbed the whole government, it was a bad 
step for the Roman people; but we are not yet ready for an 


20 


Imperator, although the present movement, if successful, will 
be a large advance in that direction. But whether we 
have a Caesar in the Executive, or whether we 
have a Caesar in the Congress separate or united, 
concentrating and perpetuating all power in its hands, either 
is equally distasteful to our political education and incon¬ 
gruous in our free institutions. No government can exist 
where the people exercise capricious power any more than 
one can exist where the Executive is a despot. Join a pop¬ 
ular Executive with a popular legislative body, for that is 
precisely what is involved in the proposed amendment 
to the Constitution, and what remains of the government 
established by the Constitution? The best government 
is that in which the checks and balances are properly and 
equally regulated—so that when one branch leans it is in¬ 
stantly held up by another. 

The Senate is endowed with wisdom and strength to 
resist all innovations of fundamental rights. It is just 
and necessary, therefore, that the power of appointment 
of Senators should be lifted out of the chaos and tumult 
of popular election and lodged in a different body. The 
member of the House represents the people of a small 
district, and of the Senate the whole State, and all of the 
people therein. If the people are neglectful or undiscrimi¬ 
nating in the election of representatives to the legislatures , 
they zvill be equally so in their choice of Senators . Cannot 
the people trust themselves to exercise the same care 
in choosing their State Legislators as they would in the 


21 


selection of Senators? The alleged reform is then noth¬ 
ing less than a stab at the people themselves—at their 
intelligence and discrimination. This argument has 
never been, and never can be, answered. Besides the 
deprivation of the legislatures of the power to elect Senators 
would be a direct and powerful blow at the morale of these 
bodies. It would be in effect the destruction of their useful¬ 
ness. It is an unfounded and undiscriminating assault 
upon forty-eight legislative bodies en bloc. It is argued 
that the State Legislatures often have “deadlocks” and 
that their time is frequently misapplied or wasted in an 
effort to elect a Senator, and that in the interim the State 
loses representation in the United States Senate. With 
great respect, this is a matter for the individual States to 
settle. It is purely a question of internal policy. Politi¬ 
cal manhood, State politics, religion or economy may be 
involved and the internal strife may be carried on to 
settle a great principle. It may be thoughtful and pa¬ 
triotic for the United States Senate to suggest to a State 
thus situated that it has none or only a half representa¬ 
tion in that body, and while it might not be the best 
of good manners to make the reply, it would be logical 
for the State to say to the Senate: “Mind your own busi¬ 
ness.” And I cannot see how a State Senatorial dead¬ 
lock is any worse than a long drawn out contested elec¬ 
tion case, or that the former are as frequent as the latter. 

In the light of history one is safe in asserting that in 
the advancement of the doctrine of the rights of man and 
of protection of property, the upper House, in this coun- 


22 


try and England, has always been found reliable. It 
was the aristocrats of England—the Barons—who ex¬ 
torted Magna Charta from King John. But the wars 
waged by the Barons, by Simon de Montfort, were 
waged not for the aristocrats alone, but for the whole 
people of England. Magna Charta is the instrument 
from which the people draw as from a perpetual reser¬ 
voir all of their inspirations of justice—it is the Anglo- 
Saxon fountain head of the rights of man to free govern¬ 
ment. In fact, at an extreme juncture, one would be 
more secure in entrusting his personal rights and prop¬ 
erty interests to a Senate as ours is constituted than to 
any popular body chosen directly by the people. The 
Senate receives its propositions second class, as it were; 
it has the advantage of the debates and thoughts of the 
popular assembly. When the latter is bubbling over 
with excitement; when its leaders are red hot with par¬ 
tisan prejudice, the Upper House is cool and wise. Their 
eyes not only see the present but they look into the 
future. They distinguish between a mere temporary 
and evanescent policy and one which is stable and for 
the real and permanent good of the people. Moreover, 
if the Senate is elected by the people, whether the elec¬ 
tions for members of both houses should be simultane¬ 
ous or held at different times, or under Federal or State 
regulations, the theory and spirit of the Constitution that 
the Upper House should contain a class of men superior 
in experience, knowledge and wisdom would be lost sight 
of, and the same stamp of individuals will be candidates 
for the Senate or House of Representatives indiscrimi- 


23 


nately as circumstances may dictate. The fruit follows 
the seed. Pumpkin seed will not produce oranges. 

But there is another and second profound distinction 
between the Senate of the United States and the English 
House of Lords—growing out of the difference between 
the two governments. The one is a limited monarchy— 
the other a Republic. The members of the House of 
Lords represent the whole nation; the members of the 
United States Senate represent the individual States of 
the Union and are in the Senate to maintain the sover¬ 
eignty of their respective States—they are its agents. 
This government could not have been formed if a council 
had not been provided for so that there would be absolute 
equality of the States in that body. 

And in this respect I feel it important to say one word 
as to the nature of our government. 

Our federation is a union of States for mutual protec¬ 
tion and benefit. The States maintain their individuality 
but give to the general government as much power as is 
necessary to make the federation a real sovereign as to 
all external and sufficient though limited powers over 
internal affairs, but the States have not stripped them¬ 
selves of all of their sovereignty. Very much to the con¬ 
trary. Which creates this anomaly: A citizen of the 
United States has two sovereigns—the United States 
and the individual State of which he is a member. 

After an experience of nearly a century and a quarter, 
we find that the tendency of the Federal Government 


24 


is to usurp more power, either through the courts or 
national legislature by an unjustifiably broad construc¬ 
tion of existing provisions of the Constitution. On the 
other hand, the States aggressively resist Federal en¬ 
croachment and seek to uphold the integrity of State 
sovereignty in its historical and political conception, and 
to maintain a true federation by yielding to the central 
government only power enough to enable it to support 
itself well and vigorously within the four corners of the 
compact of association—the Constitution. This tendency 
on the part of the Federal Government to draw to itself 
more power directly leads to centralization and the obvious 
effect of selecting Senators by the people is a blow at State 
sovereignty, for when the Senate is elected by the people, it 
eo instanti becomes a popular body and it does not ade¬ 
quately secure the rights and safety of the States, nor is 
it a citadel in which property holders and minority inter¬ 
ests can seek refuge from the storms of unfounded popu¬ 
lar attacks. As Willoughby substantially puts it, the in¬ 
dependence of the Senator is lessened, the temptation to 
subordinate the general to local interests is increased, 
and the pressure brought to bear to give immediate and 
complete expression to a popular will, that may be igno¬ 
rant or misinformed, is proportionately enhanced. And 
De Tocqueville observes that the existence of democra¬ 
cies is threatened by two dangers, viz: The complete sub¬ 
jection of the legislative body to the caprices of the electoral 
body, and the concentration of all the powers of the govern¬ 
ment in the legislative authority. 


25 


The more we encroach upon State Sovereignty, the 
more the trend toward nationalism becomes visible, to 
the consequent destruction of our theory of a federation 
of States, and the advantages of that form of government 
are gradually lost sight of. The States bear the same 
relation to the central government that a domestic fam¬ 
ily bears to a municipality. The family looks after its 
own particular foyer in its own way—it eats, drinks, lives 
according to its own conceptions of health and propriety, 
without interference by the municipality. The latter 
supervises the public concerns, the highways, the streets, 
the schools; it intrudes not into the domestic affairs of 
its citizens. The same relation should exist in practice 
as it does in theory between each individual State and 
the central government. In the performance of its State 
duties, it has no superior; its citizens understand its 
wants; they are alive to its interests and their State pride 
makes them ambitious to see their State thrive and ad¬ 
vance. But in proportion to the weakening of State 
Sovereignty the interests of its citizens wane, and soon 
State independence and individuality disappear, all 
power becomes vested in a central government, the do¬ 
mestic interest of the citizen in his State eventually dies, 
and the people are governed by a National head. 

The identity, equality and individuality of the States 
is peculiarly preserved in the Senate because each State 
has two Senators. In most Senates or select councils of 
ancient governments, the Senators enjoyed a life tenure 
and while this was discussed and advocated in the forma- 


26 


tion of our Constitution, a very wise and happy medium 
was adopted to have the Senate refreshed and re-invigo¬ 
rated as to one-third of its members every two years, so 
that the tide of public sentiment was always flowing 
through its deliberations. But if the identity of the 
States is not preserved in the Senate, all State Sover¬ 
eignty becomes a mere name and the legislative powers, 
we repeat, now concentrated in two, will gradually melt 
into one popularly chosen assembly. If the American 
lawyers cannot appreciate where this condition will lead, 
I am sadly mistaken in their knowledge. The French 
Revolution offers interesting study in this connection. 
But one thing is sure, that centralization and State 
Sovereignty cannot exist together; they are incompati¬ 
ble. Where will the small States be; what will be their 
position under such circumstances ? 

As it is provided “that no State without its consent 
shall be deprived of its equal suffrage in the Senate,” 
there is a very grave moral question whether any part of the 
clause in question should be altered without the unanimous 
consent of all the States, for if the effect of the election of 
Senators by popular vote be to destroy or decimate the 
sovereignty of the States in the Senate or to diminish 
their full and intended influence therein as States, then 
how can this suggested change be made without the con¬ 
sent of all of the States? I place this proposition not 
on any technical ground, but upon good faith between all 
of the States of the Union. If altered, it was the opinion 
of Senator Hoar, one of the best lawyers who ever 


27 


graced the Senate, that it would absolve the larger States 
from the Constitutional obligation which secures the 
equal representation of all the States in the Senate. I 
am bound to admit that I do not clearly follow this view, 
but others may understand the argument better than 
I do. 

It is said over and over again that in many States the 
people already dictate to the Legislature their choice of 
Senators, and that as a matter of common practice the 
Legislature would not venture to disobey the directions 
of the people in this respect. Unhappily for our country 
the postulate is true, but I do not admit the conclusion. 
The Constitution is still preserved and the choice is actu¬ 
ally sanctioned by the Legislatures no matter at whose 
dictation they act. In some instances, not necessary to be 
discussed, it is quite obvious that a Legislature would 
be fully justified in disobeying the commands of the 
people. 

But the real answer to this suggestion is that it is an ex¬ 
periment outside of the Constitution which may , and I 
believe, will, be quickly abandoned , for when the people 
exercise full intelligence and discrimination in selecting their 
legislators they will not wish, nor will it be necessary for 
them to dictate the names of the Senators. The Legislatures 
will always faithfully represent their constituents in the 
selection of Senators, when the constituents exercise care 
and discrimination in choosing the legislators. If the 
change in the method of choosing Senators be adopted 


28 


and this important attribute of State legislative power be 
taken from the members, where will it end? It will inevi¬ 
tably be follozved by a change in the method of choosing the 
executive and the judiciary! And then zvill follow the 
crozvning step of all—the people will dictate the particular 
laws zvhich the State legislators shall make (they are al¬ 
ready doing this in at least one Western State) ; confusion 
and chaos will follow the destitution of the legislators of all 
discretion and judgment, and then — ochlocracy. To avoid 
this, educate the people, bring to their direct attention 
all political questions, give them time to study and un¬ 
derstand them. But, most of all, elevate the profession 
of politics and do not force our citizens to apologize for 
following such a calling. 

The third difference between the English House of 
Lords and the United States Senate is that the Senate 
acts as a court in cases of impeachment of the President 
by the House of Representatives. The King of England 
cannot be impeached. But the House of Lords tries 
other impeachments presented by the Commons. When 
the President of the United States is on trial the Chief 
Justice of the Supreme Court of the United States tem¬ 
porarily quits his high place and presides over the Court 
of Impeachment. But the House impeaches and the 
Senate decides. If both Houses are elected by the people, the 
same tribunal acts as accuser and judge. They both receive 
their inspirations and conceptions of the case from the 
people and the impartiality and independence of the Sen¬ 
ate disappears. This is not the American conception of 
justice. 


29 


Moreover, the Senate is associated with the President 
in making treaties, and in this respect again it differs 
from the House of Lords; it is only with the advice and 
consent of two-thirds of the Senators present when the 
question arises that the President has power to conclude 
a treaty. The King of England can make treaties with¬ 
out the concurrence of either house of Parliament, but 
the people have seen fit to associate the Senate with the 
President in the exercise of this Executive function. 

Jay, in an article in the “Federalist” upon the provision 
relating to the making of treaties, said: 


“The power of making treaties is an important 
one, especially as it relates to war, peace and com¬ 
merce, and it should not be delegated but in such a mode 
and with such precautions as will afford the highest se- 
. curity that it will be exercised by men the best qualified 
for the purpose and in the manner most conducive to the 
public good. The convention appears to have been 
attentive to both these points; they have directed 
the President to be chosen by select bodies of elec¬ 
tors to be deputed by the people for that express 
purpose; and they have committed the appointment 
of Senators to the State Legislatures. This mode 
has in such cases vastly the advantage of elections by 
the people in their collective capacity, where the ac¬ 
tivity of party seal, taking advantage of the supineness, 
the ignorance, and the hopes and fears of the unwary 
and interested, often places men in office by the votes 
of a small proportion of the electors” * * * 


30 


Has this logic lost its strength because our population has 
increased from thirteen to nearly one hundred millions of 
people ? 

“The influence which naturally results from these 
considerations is this—that the President and Sena¬ 
tors so chosen will always be of the number of those 
who best understand our national interests, whether 
considered in relation to the several States, or to 
foreign nations, who are best able to promote those 
interests, and whose reputation for integrity in¬ 
spires and merits confidence. With such men the 
power of making treaties may be safely lodged.” 
* * * ^ 

Finally, it is only with the advice and consent of the 
Senate that the President can appoint ambassadors, 
other public ministers and Consuls, Judges of the Su¬ 
preme Court and all other officers of the United States 
whose appointment are not otherwise provided for in 
the Constitution. 

It thus will be seen that the Senate is not only a legis¬ 
lative body but it has co-ordinate judicial and executive 
functions and possesses much more power than the 
House of Lords which rarely acts as a check to the 
House of Commons, because of the peculiar character 
of the whole government. 


31 


The Senate of the United States has an unbroken 
record since its establishment that no legislative department 
of any government ever excelled. 

It is to be destroyed by an ipse dixit, for no argument 
are made against the general capabilities, honesty or patri¬ 
otism of its members, and no arraignment of its usefulness 
is presented. It is to be brutally abolished because some¬ 
body thinks and someone believes that the people will be 
better served if they directly elect the Senators. One of 
the most firmly established branches of the government 
is to be torn up by the roots and sacrificed to a spirit of 
speculation. All the teachings of history and principle 
are to be cast aside to satisfy a most superficial spirit of 
reform. 

The main argument put forth that there has been a 
change in conditions since the constitution was adopted 
is the strongest in favor of its retention. The Senate 
was organized to meet not the existing but a future his¬ 
tory when the nation would have a greater population 
and be confronted with more complicated questions of poli¬ 
tics and commerce. The framers of the Constitution did not 
entertain the silly opinion that this country was to stand 
still, and that the Constitution was to be adapted merely to 
the situation existing when it was promulgated. It was 
launched for a voyage into the future centuries; it was con¬ 
structed and equipped to meet all the emergencies and vicissi¬ 
tudes which an increased population and a growing nation 
would develop. 

Wherever the population of a country is so large that 
an absolute democracy cannot exist a representative 


32 


government is necessary and a Senate appointed or 
elected by some power at least a degree removed from 
the people is not a mere form but an essential to a perma¬ 
nent government. 

The conception of a Senate was not original with the 
creators of our Federation. Even the name and age of the 
Senators were borrowed. 

A senate existed in Athens, anterior to Solon and he 
organized this branch with 400 members above thirty 
years of age chosen by lot, among the four tribes from 
among the citizens of the three first classes. It deliber¬ 
ated upon all affairs before they were carried into the 
assembly of the people. Being mindful of the experi¬ 
ence of ages we have reversed conditions. It was substan¬ 
tially the same with the Spartan Senate which was organized 
by Lycurgus. 

The Senate of the United States was only new in the 
aspect of the federation, each State small or great having 
two Senators to represent it. But if a Confederation had 
not been formed and the individual States had dissolved 
themselves and coalesced into a Nation, a Senate indepen¬ 
dent of the people, and of the Executive would have still 
been essential. 

In conclusion, I feel that the only strength of this move¬ 
ment is that it has secured the support of Senators and 
others whose names and opinions are entitled to respect and 
weight. I could have hoped that in an issue touching a 
fundamental alteration of the Constitution there would 
exist practical unanimity. Unhappily, the opponents of 
the proposition to change the method of election have al- 


33 


lowed this movement to run unchecked without organization 
or serried opposition. Many have believed that there would 
come a time when it would check itself and that sober second 
thought would suffice to kill it. Once started, however, it has 
gathered momentum from the inertia of the people until it 
has reached a point where the Senate of the United States 
is asked to declare itself incompetent to fulfil its mission, and 
to pronounce the work of Washington, Hamilton, Madison 
and the other illustrious framers and supporters of the Con¬ 
stitution, a failure. It is time the whole country aroused 
itself. We are passing through an epoch so momentous that 
the American bar should organize to resist the most danger¬ 
ous innovation ever attempted since the formation of the 
government. Secession aimed to deprive the Union of part 
of the States, but the present scheme obliterates their sover¬ 
eignty and changes the federation into a nation with one 
popular assembly. 

JOHN R. DOS PASSOS. 


New York, February 4, 1911. 

















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